Director of Proceedings v Wilding International Ltd

Director of Proceedings v Wilding International Ltd [2021] NZHRRT 45, (22 September 2021)

The Director filed proceedings against Wilding International Ltd (“the defendant”), which operated Armourdene Rest Home, regarding the care it provided to Mr A. The Director alleged the defendant breached Right 10(3) of the Code of Health and Disability Services Consumers’ Rights through its failure to facilitate the fair, simple, speedy, and efficient resolution of a complaint to the Health and Disability Commissioner. The proceeding was filed in the Human Rights Review Tribunal (“the Tribunal”).

Mr A had been resident at Armourdene Rest Home since 2010. He had a history of brain injury, stroke, and hypertension and diagnoses of schizoaffective disorder and prostate cancer. As a result of his cancer, his right leg was swollen, he suffered pain, and his mobility was restricted. He had an indwelling urinary catheter.

By early 2018, Mr A’s family were concerned whether Armourdene Rest Home could continue to provide the level of care he needed. In August 2018 he suffered a fall in his room and was transferred to Waikato Hospital. On admission, staff noted Mr A’s generally unkempt condition and that the catheter was neither secure nor draining properly. He was found to have a hip fracture, a urinary tract infection, and a pressure sore on his sacrum. Sadly, Mr A passed away soon afterwards.

In September 2018, Mr A’s sister-in-law complained to the Commissioner about the care provided to Mr A by the defendant. As is usual practice, the Commissioner sent a copy of the complaint to the defendant, together with a request for Mr A’s clinical notes for the relevant time period. The notes were sought to help the Commissioner decide what action, if any, to take on the complaint. The defendant declined to provide a copy of the notes in response to that request and several follow-up requests.

In November 2019, the Deputy Health and Disability Commissioner commenced an investigation into whether the defendant provided Mr A with an appropriate standard of care in 2018. Once an investigation has been opened, the Commissioner and Deputy Commissioners may exercise a statutory power to require providers to furnish such information or documents as may be relevant to that investigation.[1]

The Deputy Commissioner sought Mr A’s clinical notes and other information relevant to the complaint, such as copies of the defendant’s policies on falls, wound care, and medication, and copies of any incident reports relevant to Mr A’s fall. The defendant again declined to provide a copy of the information sought. Between October 2018 and November 2019, the Commissioner and Deputy Commissioner requested copies of the clinical notes on at least ten occasions, and on each occasion the request was declined or ignored. Without those notes, the complaint by Mr A’s sister-in-law could not be assessed or investigated properly.

Armourdene Rest Home closed in April 2020, but providers of health and disability support services are required to retain health information (such as clinical notes) for a minimum ten years, even if they have ceased providing services.

On 11 March 2021, the Deputy Commissioner finalised her opinion that the defendant had breached Right 10(3) of the Code by its failure to facilitate the resolution of the complaint by Mr A’s sister-in-law. The Deputy Commissioner referred the defendant to the Director, who filed this proceeding in April 2021. The Director sought an order that the defendant supply the information sought by the Deputy Commissioner and a declaration that the defendant was in breach of the Code. The Director also sought damages payable to Mr A’s estate and to his surviving family members.

Soon after the proceeding was filed, the defendant supplied Mr A’s clinical notes to the Director. The Director forwarded the notes to the Commissioner’s investigation staff to decide whether a fresh investigation should be commenced.

The defendant later admitted a breach of Right 10(3) of the Code. The defendant accepted, in hindsight, that its failure to provide the requested material adversely affected the Deputy Commissioner’s ability to conduct an investigation and extended the investigation process. The defendant apologised for the failure to provide the notes and made an offer of compensation to Mr A’s family. The Director and the defendant were therefore able to settle the proceeding and sought an outcome from the Tribunal by consent.

The Tribunal was satisfied that the defendant had breached Right 10(3) of the Code, and issued a declaration to that effect. The Director understands that this is the first time the Tribunal has found a provider in breach of Right 10(3).

The Deputy Commissioner’s report and the Tribunal’s decision are reminders that the rights in the Code extend not only to standards of care, but also to the right to complain about that care. Consumers and their families may have little information about what happened to them in care, and often it is only through an investigation that a more complete picture can be provided. The decision should remind providers that they are expected to comply with the Commissioner’s evidence-gathering powers and facilitate the resolution of each complaint, even if they disagree with the content of the complaint. A failure to comply with the investigation process is serious and may result in civil or criminal proceedings.[2]

The Tribunal’s full decision can be found at:

https://www.justice.govt.nz/assets/Documents/Decisions/2021-nzhrrt-45-director-of-proceedings-v-wilding-international-ltd.pdf

 

[1] Health and Disability Commissioner Act 1994, s 62.

[2] Health and Disability Commissioner Act 1994, s 73.